Roger B. v. Commissioner of Correction ( 2015 )

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ROGER B.* v. COMMISSIONER
OF CORRECTION
(AC 36149)
Beach, Alvord and Bishop, Js.
Argued January 13—officially released May 12, 2015
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Deren Manasevit, assigned counsel, for the appel-
lant (petitioner).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were David Shepack, state’s attor-
ney, and Brenda L. Hans, assistant state’s attorney, for
the appellee (respondent).
Opinion
ALVORD, J. The petitioner, Roger B., appeals follow-
ing the denial of his petition for certification to appeal
from the judgment of the habeas court denying his
petition for a writ of habeas corpus. On appeal, the
petitioner claims that the habeas court (1) abused its
discretion in denying his petition for certification to
appeal, (2) improperly rejected his claim that his trial
counsel was ineffective in that he failed to raise a statute
of limitations affirmative defense, and (3) improperly
rejected his claim that his trial counsel was ineffective
in that he failed to consult and present an expert. We
agree with the petitioner’s first and second claims and,
accordingly, reverse in part the judgment of the
habeas court.
The following facts and procedural history underlie
the petitioner’s appeal. The petitioner was convicted
after a jury trial of one count of sexual assault in the
first degree in violation of General Statutes § 53a-70 (a)
(2), two counts of sexual assault in the fourth degree
in violation of General Statutes § 53a-73a (a) (1) (A),
and three counts of risk of injury to a child in violation
of General Statutes § 53-21 (2). The petitioner was sen-
tenced to a total effective term of twenty-nine years
incarceration, execution suspended after twenty-three
years, with thirty years of probation. The petitioner
appealed from the judgment of conviction.
Our Supreme Court, in affirming the conviction, con-
cluded that the jury reasonably could have found the
following facts: ‘‘In 1995, the [petitioner] lived with his
girlfriend, J.T., and her three children; two girls, S and
J, and one boy, K. S was eight years old and J was four
years old.1 There were two bedrooms on the first floor
of the house. S and J shared a bedroom, as did the
[petitioner], J.T. and K. The living room and kitchen
were located on the second floor. Almost nightly, the
[petitioner] would wake up S and take her upstairs to
the living room, where he would sexually assault her.2
‘‘In May, 1996, the [petitioner], J.T. and her children
and the [petitioner’s] mother moved to a new house.
The kitchen, living room and S’s bedroom were on the
first floor of the house. There were three bedrooms on
the second floor. The [petitioner] and J.T. shared one
bedroom, and J and K shared another. The [petitioner’s]
mother also slept on the second floor. In the new house,
the [petitioner] would wake up J and take her to the
living room or to his bedroom and sexually assault her.3
‘‘In the fall of 1999, J.T. entered a psychiatric ward.
S, J and K lived with the [petitioner], who was their sole
caretaker4 until representatives from the department of
children and families (department) removed the chil-
dren because the [petitioner] was not a relative. In Feb-
ruary, 2000, the department placed J in a foster home.
The department subsequently placed S in the same fos-
ter home. A few months after living in the foster home,
S told her boyfriend that she had been abused by the
[petitioner]. S later told her foster mother and her thera-
pist that the [petitioner] had abused her. When J also
told her foster mother that the [petitioner] had abused
her, the foster mother reported the allegations to the
department.’’ State v. Roger B., 297 Conn. 607, 609–10,
999 A.2d 752 (2010). Additional facts will be set forth
as necessary.
On August 21, 2008, the petitioner filed his initial
petition for a writ of habeas corpus. The petitioner filed
an amended petition on August 25, 2011. In his amended
petition, the petitioner alleged that his trial counsel,
Christopher Cosgrove, had rendered ineffective assis-
tance in numerous ways. Relevant to this appeal are
the petitioner’s allegations that his trial counsel had
rendered ineffective assistance in failing to (1) raise a
statute of limitations affirmative defense, and (2) con-
sult and retain an expert to review the protocol used
in forensic interviews conducted with the two victims.
The court held an evidentiary hearing on the petition.
In a memorandum of decision filed August 16, 2013,
the court denied the petitioner’s amended petition.
After the court denied the petition for a writ of habeas
corpus, the petitioner filed a petition for certification
to appeal to this court, which was denied on August
28, 2013. On September 30, 2013, the petitioner filed
the present appeal.5
On appeal, the petitioner claims that the habeas court
improperly concluded that he received effective assis-
tance of counsel. We first set forth our standard of
review. ‘‘Faced with the habeas court’s denial of certifi-
cation to appeal, a petitioner’s first burden is to demon-
strate that the habeas court’s ruling constituted an
abuse of discretion. . . . A petitioner may establish an
abuse of discretion by demonstrating that the issues
are debatable among jurists of reason . . . [the] court
could resolve the issues [in a different manner] . . .
or . . . the questions are adequate to deserve encour-
agement to proceed further. . . . The required deter-
mination may be made on the basis of the record before
the habeas court and the applicable legal principles.’’
(Citations omitted; emphasis in original; footnote omit-
ted; internal quotation marks omitted.) Johnson v. Com-
missioner of Correction, 285 Conn. 556, 564, 941 A.2d
248 (2008).
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by this court for
determining the propriety of the habeas court’s denial
of the petition for certification. Absent such a showing
by the petitioner, the judgment of the habeas court must
be affirmed. . . .
‘‘Our standard of review of a habeas court’s judgment
on ineffective assistance of counsel claims is well set-
tled. In a habeas appeal, this court cannot disturb the
underlying facts found by the habeas court unless they
are clearly erroneous, but our review of whether the
facts as found by the habeas court constituted a viola-
tion of the petitioner’s constitutional right to effective
assistance of counsel is plenary.’’ (Citation omitted;
internal quotation marks omitted.) Holloway v. Com-
missioner of Correction, 145 Conn. App. 353, 363–64,
77 A.3d 777 (2013).
‘‘A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of criminal proceedings. . . . This right
arises under the sixth and fourteenth amendments to
the United States constitution and article first, § 8, of
the Connecticut constitution. . . . As enunciated in
Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984)], this court has stated: It
is axiomatic that the right to counsel is the right to the
effective assistance of counsel. . . . A claim of ineffec-
tive assistance of counsel consists of two components:
a performance prong and a prejudice prong. To satisfy
the performance prong . . . the petitioner must dem-
onstrate that his attorney’s representation was not rea-
sonably competent or within the range of competence
displayed by lawyers with ordinary training and skill
in the criminal law. . . . To satisfy the prejudice prong,
[the petitioner] must demonstrate that there is a reason-
able probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different. . . . The claim will succeed only if both
prongs are satisfied. . . . [A] reviewing court can find
against a petitioner on either ground, whichever is eas-
ier.’’ (Internal quotation marks omitted.) Gonzalez v.
Commissioner of Correction, 122 Conn. App. 271, 279–
80, 999 A.2d 781, cert. denied, 298 Conn. 913, 4 A.3d
831 (2010).
In order to determine whether the habeas court
abused its discretion in denying the petition for certifi-
cation to appeal, we must consider the merits of the
petitioner’s underlying claims that his trial counsel pro-
vided ineffective assistance. With the foregoing princi-
ples in mind, we turn to the petitioner’s claims.
I
The petitioner first claims that his trial counsel’s fail-
ure to assert a statute of limitations affirmative defense
constituted ineffective assistance of counsel. The peti-
tioner argues, pursuant to State v. Crawford, 202 Conn.
443, 521 A.2d 1034 (1987), and State v. Ali, 233 Conn.
403, 660 A.2d 337 (1995), that the issuance of the warrant
for his arrest did not toll the statute of limitations
because the warrant was not executed without unrea-
sonable delay. The basis for the petitioner’s claim is
that although the warrant had been issued on July 6,
2005, within the applicable statute of limitations, the
warrant was not executed until January 24, 2007,
beyond the five year period established by General Stat-
utes § 54-193a, entitled ‘‘Limitation of prosecution for
offenses involving sexual abuse of minor.’’6 The peti-
tioner asserts that his trial counsel’s failure to assert
this affirmative defense rendered counsel’s perfor-
mance deficient. He claims that had his trial counsel
asserted the defense, the outcome of the proceedings
would have been different and argues that ‘‘a defendant
suffers prejudice when defense counsel fails to assert
a meritorious statute of limitations defense that could
put an end to the prosecution.’’
The following additional facts as found by the habeas
court are relevant to the petitioner’s claim. The offenses
of which the petitioner was convicted were committed
over a period of time from 1995 to 2000. The department
reported the allegations of sexual abuse to the New
Milford Police Department on July 7, 2000. On July 17,
2000, New Milford Police Department Detective James
Mullin watched a forensic interview conducted with
the victims. Mullin obtained a statement from the peti-
tioner on August 31, 2000. The petitioner gave police
permission to conduct a search of his apartment and
storage unit. The investigation was completed in 2000,
and police did not discover any additional evidence
between 2000 and 2005. On July 6, 2005, police obtained
an arrest warrant for the petitioner. The petitioner had
left Connecticut several months after he gave his state-
ment to police. The petitioner had addresses in Indiana
and eventually relocated to Alabama. United States mar-
shals located the petitioner in Alabama in November,
2006, at which time the state’s attorney authorized his
extradition from Alabama. The petitioner was trans-
ported to New York, and Mullin executed the arrest
warrant on January 24, 2007.
A statute of limitations affirmative defense on the
basis of unreasonable delay in execution of the warrant
is properly considered according to the framework set
forth in Crawford and articulated in subsequent appel-
late decisions. In State v. Crawford, supra, 202 Conn.
450, our Supreme Court stated: ‘‘When an arrest warrant
has been issued, and the prosecutorial official has
promptly delivered it to a proper officer for service, he
has done all he can under our existing law to initiate
prosecution and to set in motion the machinery that
will provide notice to the accused of the charges against
him. When the prosecutorial authority has done every-
thing possible within the period of limitation to evi-
dence and effectuate an intent to prosecute, the statute
of limitations is tolled. . . . An accused should not be
rewarded, absent evidence of a lack of due diligence
on the part of the officer charged with executing the
warrant, for managing to avoid apprehension to a point
in time beyond the period of limitation.
‘‘We recognize, however, that some limit as to when
an arrest warrant must be executed after its issuance
is necessary in order to prevent the disadvantages to
an accused attending stale prosecutions, a primary pur-
pose of statutes of limitations. . . . Therefore, we
adopt, what we think is the sensible approach of the
model penal code, and conclude that, in order to toll
the statute of limitations, an arrest warrant, when issued
within the time limitations of § 54-193 (b)7, must be
executed without unreasonable delay8. . . . We do not
adopt a per se approach as to what period of time to
execute an arrest warrant is reasonable. A reasonable
period of time is a question of fact that will depend on
the circumstances of each case. If the facts indicate
that an accused consciously eluded the authorities, or
for other reasons was difficult to apprehend, these fac-
tors will be considered in determining what time is
reasonable. If, on the other hand, the accused did not
relocate or take evasive action to avoid apprehension,
failure to execute an arrest warrant for even a short
period of time might be unreasonable and fail to toll
the statute of limitations.’’ (Citations omitted; footnotes
altered.) Id., 450–51. In State v. Ali, supra, 233 Conn.
416, our Supreme Court further noted that ‘‘the issuance
of an arrest warrant is sufficient ‘prosecution’ to satisfy
the statute of limitations only if the warrant is executed
with due diligence.’’9
‘‘A statute of limitations claim is an affirmative
defense for which the burden rests with the defendant
to prove the elements of the defense by a preponder-
ance of the evidence. . . . Despite this, once a defen-
dant puts forth evidence to suggest that [he] was not
elusive, was available and was readily approachable,
the burden shifts to the state to prove that the delay
in executing the warrant was not unreasonable.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Woodtke, 130 Conn. App. 734, 740, 25 A.3d 699 (2011);
see also State v. Derks, 155 Conn. App. 87, 93, A.3d
, cert. denied, 315 Conn. 930, A.3d (2015).
The petitioner raised his claim that trial counsel was
ineffective in failing to raise a statute of limitations
affirmative defense before the habeas court in his peti-
tion, in his briefs to the court, and through testimony
and other evidence at trial. In his pretrial brief, the
respondent, the Commissioner of Correction, coun-
tered that ‘‘[t]here is no viable statute of limitations
defense because the arrest warrant was issued within
the five year period from the victims’ reporting it to
authorities.’’ In his posttrial brief, the respondent
argued that the petitioner’s moves to Indiana and Ala-
bama had made it difficult to apprehend him, and thus
he would not have prevailed on a statute of limitations
affirmative defense. Accordingly, our review of the
record leads us to conclude that the petitioner ade-
quately raised his claim in the habeas court.
We next examine the habeas court’s resolution of the
petitioner’s claim. In a section of the habeas court’s
memorandum of decision titled ‘‘Arrest Warrant
Delays,’’ the habeas court found that ‘‘the petitioner has
failed to provide any credible evidence to establish that
he was prejudiced at trial by his counsel’s failure to
challenge the warrant as stale or the delay in executing
it.’’ The court further concluded that the ‘‘[p]etitioner’s
trial counsel definitively and credibly testified that [the]
petitioner’s defense was not hindered in any way by
the delays, and the petitioner has not provided this court
with any credible evidence to dispute this assertion.’’ It
noted that trial counsel had determined that the defense
was not hindered by the delays because ‘‘no new infor-
mation arose during the period, no witnesses went miss-
ing, and the witnesses were able to recall events.’’
In the following section titled ‘‘Statute of Limita-
tions,’’ the habeas court concluded that trial counsel
did not act deficiently in failing to file a motion to
dismiss the charges on the basis of the statute of limita-
tions.10 In discussing this claim, the habeas court cited
State v. Crawford, supra, 202 Conn. 450, for the proposi-
tion that ‘‘[w]hen an arrest warrant has been issued,
and the prosecutorial official has promptly delivered it
to a proper officer for service, he has done all he can
under our existing law to initiate prosecution and to
set in motion the machinery that will provide notice to
the accused of the charges against him’’ . . . . Noting
that trial counsel had reviewed the statute of limitations
issue and ‘‘did the math’’ to determine that the warrant
had been executed within the statute of limitations, the
habeas court denied the claim.
The petitioner claims on appeal that ‘‘[t]he habeas
court failed to address the postwarrant delay, finding
only that [trial counsel] reasonably calculated that the
warrant had been issued within the period of limita-
tion.’’ Our review of the record leads us to agree with
the petitioner. We will set forth our reasoning.
We again note that ‘‘[a] claim of ineffective assistance
of counsel consists of two components: a performance
prong and a prejudice prong.’’ (Internal quotation marks
omitted.) Gonzalez v. Commissioner of Correction,
supra, 122 Conn. App. 279. This court has two instruc-
tive cases: Gonzalez and Thompson v. Commissioner
of Correction, 91 Conn. App. 205, 880 A.2d 965 (2005),
appeal dismissed, 280 Conn. 509, 909 A.2d 946 (2006).
‘‘To satisfy the performance prong . . . the petitioner
must demonstrate that his attorney’s representation
was not reasonably competent or within the range of
competence displayed by lawyers with ordinary training
and skill in the criminal law.’’ Gonzalez v. Commis-
sioner of Correction, supra, 279. In Thompson v. Com-
missioner of Correction, supra, 215, this court
determined that trial counsel’s representation ‘‘fell
below an objective standard of reasonableness when
she did not file the appropriate motion to dismiss . . .
on the basis of the staleness of the arrest warrant.’’ The
court further noted that trial counsel had not raised the
statute of limitations as an affirmative defense, nor did
trial counsel present any evidence of the delay in execu-
tion of the warrant. Id., 215 n.10. This court disagreed
with the habeas court’s conclusion that the petitioner
in that case had been difficult to apprehend because
he had been out of state for only a short period after
the issuance of the warrant, had been arrested a number
of times in Connecticut and each time had provided his
current address. Id., 214–15. This court further con-
cluded that it could not say that the respondent ‘‘could
show an absen[ce] [of] evidence of a lack of due dili-
gence on the part of the officer charged with executing
the warrant . . . .’’ (Internal quotation marks omitted.)
Id., 215.
‘‘To satisfy the prejudice prong, [the petitioner] must
demonstrate that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of
the proceeding would have been different.’’ (Internal
quotation marks omitted.) Gonzalez v. Commissioner
of Correction, supra, 122 Conn. App. 279. Accordingly,
the prejudice analysis turns on whether the petitioner
had demonstrated that there was a reasonable probabil-
ity that he would have prevailed on an affirmative
defense based on the delay in the execution of the
warrant. See id., 280 (concluding it was unlikely peti-
tioner would have prevailed on motion to dismiss, had
he brought one challenging delay in execution of war-
rant); see also Thompson v. Commissioner of Correc-
tion, supra, 91 Conn. App. 216 (‘‘We conclude, in
accordance with the Strickland standard, that, but for
[trial counsel’s] failure to file a motion to dismiss, the
result of the proceeding would have been different. Had
[trial counsel] filed a motion to dismiss on the basis
of the staleness of the warrant, there is a reasonable
probability that the trial court would have dismissed
that charge due to the delay between the issuance of
the warrant and the execution of the warrant more than
nine years later.’’).
In this proceeding, the habeas court’s discussion of
the petitioner’s claim that trial counsel was ineffective
in failing to assert a statute of limitations affirmative
defense was limited to the issuance of the warrant
within the statute of limitations. Although the court
discussed the delay in execution of the warrant as it
affected the petitioner’s defense, the court focused on
Cosgrove’s testimony that no witnesses went missing
and that the witnesses were able to recall the events
in concluding that the petitioner’s defense had not
been hindered.
Proper resolution of the petitioner’s claim pursuant
to State v. Crawford, supra, 202 Conn. 443, and State
v. Ali, supra, 233 Conn. 403, would instead require the
court to consider whether there was a reasonable prob-
ability that the petitioner would have succeeded on a
statute of limitations affirmative defense that was based
on unreasonable delay in executing the warrant. Such
an analysis would include considering whether the peti-
tioner had ‘‘[put] forth evidence to suggest that [he]
was not elusive, was available and was readily
approachable,’’ such that ‘‘the burden [would have]
shift[ed] to the state to prove that the delay in executing
the warrant was not unreasonable.’’ State v. Woodtke,
supra, 130 Conn. App. 740; see Gonzalez v. Commis-
sioner of Correction, supra, 122 Conn. App. 286 and
n.6 (rejecting petitioner’s claim that ‘‘he had not acted
elusively or that his whereabouts were readily ascer-
tainable by the police’’ and concluding that burden had
not shifted to state to prove ‘‘it had not acted unreason-
ably in executing the warrant’’). When and if the peti-
tioner put forth that evidence, the burden would shift,
and the subsequent evidentiary analysis would include
consideration of whether the respondent would have
succeeded in proving that the delay was not unreason-
able. This analysis would involve examination of the
police actions leading up to the execution of the war-
rant. See State v. Derks, supra, 155 Conn. App. 95 (con-
sidering, inter alia, that police had entered warrant in
FBI’s National Crime Information Center database and
had conducted computer searches for defendant, but
that error in database system prevented police from
receiving notification of defendant’s arrests in
Colorado).
Accordingly, having reviewed the petitioner’s claim,
we conclude that the habeas court abused its discretion
in denying certification to appeal.11 We further conclude
that the petitioner is entitled to a new hearing at which
he may present his claim that his trial counsel was
ineffective for failing to raise a statute of limitations
affirmative defense.
II
The petitioner next claims that his trial counsel was
ineffective with regard to failures in connection with
the forensic interviews conducted with the child vic-
tims. He argues that ‘‘effective counsel would have con-
sulted an expert on proper interviewing techniques for
child sexual abuse complainants, would have intro-
duced an expert at trial to educate the jury about chil-
dren’s suggestibility and proper interviewing
techniques, and would have introduced the videotaped
interview to cast doubt on the reliability and veracity
of the allegations that S and J had made eight years
earlier about events that, by 2008, had occurred up to
thirteen years earlier.’’
The following additional facts as found by the habeas
court are relevant to the petitioner’s claim. Forensic
interviews were conducted with the victims on July 17,
2000. At that time, S was thirteen and J was eight. At
the time of the criminal trial, S was twenty-one and J
was sixteen. The petitioner’s trial counsel viewed the
videotapes of the forensic interviews before the trial.
Trial counsel informed the petitioner of the videotapes
and suggested to the petitioner that he review them,
but the petitioner declined to do so. Trial counsel was
familiar with protocols for conducting forensic inter-
views, and he did not believe that he needed to consult
an expert to educate him concerning the protocols.
After viewing the videotapes, trial counsel concluded
that the forensic interviews were very damaging to the
petitioner’s case. His testimony was that the effect of
the jury watching the videotapes would have been ‘‘dev-
astating . . . .’’ The decision to keep the videotapes
from the jury was a tactical one, and his testimony was
that certain decisions were made during trial to avoid
opening the door to the introduction of the videotapes.
The state did not offer the videotapes of the forensic
interviews into evidence during the petitioner’s criminal
trial, but did introduce the testimony of S and J.
We first note that our Supreme Court has ‘‘never
adopted a bright line rule that an expert witness for
the defense is necessary in every sexual assault case.’’
Michael T. v. Commissioner of Correction, 307 Conn.
84, 100–101, 52 A.3d 655 (2012); see also Peruccio v.
Commissioner of Correction, 107 Conn. App. 66, 76
n.7, 943 A.2d 1148 (‘‘[t]he United States Court of Appeals
for the Second Circuit has stated: [T]here is no per se
rule that requires trial attorneys to seek out any expert’’
[emphasis in original; internal quotation marks omit-
ted]), cert. denied, 287 Conn. 920, 951 A.2d 569 (2008).
‘‘[U]nder certain circumstances, [however] the failure
to use any expert can result in a determination that a
criminal defendant was denied the effective assistance
of counsel.’’ (Emphasis omitted.) Peruccio v. Commis-
sioner of Correction, supra, 76.
‘‘We recently have stated: The second part of the
Strickland analysis requires more than a showing that
the errors made by counsel may have had some effect
on the outcome of the proceeding. . . . Rather, [the
petitioner] must show that there is a reasonable proba-
bility that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.
. . . When a [petitioner] challenges a conviction, the
question is whether there is a reasonable probability
that, absent the errors, the factfinder would have had
a reasonable doubt respecting guilt. . . . Meeting this
admittedly high standard is indeed a herculean task
. . . .’’ (Citation omitted; internal quotation marks
omitted.) Id., 79–80. ‘‘A court ruling on prejudice must
consider the totality of the evidence before the judge
or the jury. . . . Some errors will have had a pervasive
effect on the inferences to be drawn from the evidence,
altering the entire evidentiary picture, and some will
have had an isolated, trivial effect. Moreover, a verdict
or conclusion only weakly supported by the record is
more likely to have been affected by errors than one
with overwhelming record support. . . . The bench-
mark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial can-
not be relied on as having produced a just result.’’ (Inter-
nal quotation marks omitted.) Minor v. Commissioner
of Correction, 150 Conn. App. 756, 762–63, 92 A.3d 1008,
cert. denied, 314 Conn. 903, 99 A.3d 1168 (2014).
We find it helpful to review the contrasting circum-
stances of Michael T. v. Commissioner of Correction,
144 Conn. App. 45, 62, 71 A.3d 660, cert. granted, 310
Conn. 938, 79 A.3d 891 (2013), a case in which this
court determined that the petitioner’s trial counsel had
rendered ineffective assistance in failing to present
expert testimony.12 Through expert testimony at the
habeas trial in Michael T., the petitioner was able to
show that an expert would have testified at the petition-
er’s criminal trial to numerous problems with the foren-
sic interviews conducted in that case. The testimony
was that the interviews were conducted in an accusa-
tory atmosphere that was based on an assumption that
the child had been sexually abused because of an infec-
tion that experts testified at trial was a condition that
was sexually transmitted. Id., 51. There was also testi-
mony that the child’s disclosure had been tainted
because she had been interviewed on at least six occa-
sions, including by her mother and a department investi-
gative social worker, before the forensic interview. Id.,
59. The child, initially questioned at age four and one-
half, also possessed developmental delays that the
expert testified made her more susceptible to contami-
nating interview approaches. Id., 51–52. We find the
present circumstances to be distinguishable.
In the present case, during his habeas trial, the peti-
tioner presented the expert testimony of Nancy Eisw-
irth, a licensed clinical psychologist. Eiswirth testified
generally as to, among other things, the evolution of
protocols for conducting forensic interviews of chil-
dren, the general structure of such interviews, and the
types of questions. Eiswirth stated that she had
reviewed the videotapes and transcripts of the inter-
views conducted with the victims in this case. She testi-
fied as to a number of issues with both interviews,
including that the interviewers used leading questions.
She opined that a critical error occurred in the interview
with J, in that the interviewer’s demonstration using
dolls was suggestive. With regard to S’s interview, Eisw-
irth testified that the interviewer had failed to explore
whether S had acquired sexual knowledge from sources
other than the petitioner. Eiswirth further testified as
to concerns with both interviewers’ conclusions.
Christopher Cosgrove, the petitioner’s trial counsel,
also testified. He stated that he had attended seminars
on child sexual abuse that included the area of forensic
interviewing of children and had viewed dozens of
forensic interview tapes. He testified that he had con-
sulted with forensic experts in previous cases,
explaining that he had ‘‘gone over [videotapes of foren-
sic interviews] in other cases with [the expert] and
shown them to her and she has gone over with me what
the protocol should be, you know, as far as leading
questions or suggestive behavior . . . .’’ As to the vid-
eotapes in the present case, he had viewed them ‘‘proba-
bly two or three times at least’’ and the audiotapes once.
He explained that he did not think that ‘‘there was
anything in those tapes that would [have] helped my
client. I think there was a lot in there that would [have]
hurt my client.’’ He stated that he thought that the vic-
tims were very effective in what they said during their
interviews and that the effect on a jury would have
been ‘‘devastating’’ for the petitioner. He indicated that
he did not see the need to retain an expert in this case.
He further testified that he made a tactical decision to
avoid cross-examining the victims on their interviews
to avoid introduction of the videotapes into evidence.
The petitioner claims that trial counsel was ineffec-
tive in failing to introduce the videotapes into evidence.
The habeas court found that the petitioner failed to
prove that trial counsel’s conduct was deficient. In con-
sidering the petitioner’s claim, we note that ‘‘[c]ounsel
is strongly presumed to have rendered adequate assis-
tance and made all significant decisions in the exercise
of reasonable professional judgment.’’ (Internal quota-
tion marks omitted.) Watson v. Commissioner of Cor-
rection, 111 Conn. App. 160, 170–71, 958 A.2d 782, cert.
denied, 290 Conn. 901, 962 A.2d 128 (2008); see also
Adorno v. Commissioner of Correction, 66 Conn. App.
179, 183, 783 A.2d 1202 (‘‘[b]ecause of the difficulties
inherent in making the evaluation, a court must indulge
a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance;
that is, the [petitioner] must overcome the presumption
that, under the circumstances, the challenged action
might be considered sound trial strategy’’ [internal quo-
tation marks omitted]), cert. denied, 258 Conn. 943, 786
A.2d 428 (2001). In Watson, this court concluded that
counsel’s decision not to introduce a report because it
would ‘‘invite difficult questions’’ fell ‘‘within the cate-
gory of strategic decisions that our courts consistently
refuse to second-guess.’’ Watson v. Commissioner of
Correction, supra, 171–72.
In this case, the habeas court concluded that ‘‘the
tactical decision to avoid the introduction of the foren-
sic interviews was an objectively reasonable trial tac-
tic.’’ In so concluding, it expressly noted that it agreed
with trial counsel’s assessment that the videotapes were
‘‘highly damaging to the petitioner.’’ The court’s conclu-
sions are supported by the record. The petitioner’s trial
counsel testified that ‘‘[i]t would be devastating for the
jury to see [J] this little girl in the context of the same
age and size she was at the time of the alleged incident
. . . . And S was thirteen, but in many ways acted quite
a bit older than that, and I believe that they were both
very . . . effective . . . .’’ Accordingly, we cannot
conclude that the petitioner has overcome the presump-
tion that his trial counsel acted reasonably in deciding
not to introduce the videotapes. We agree with the
habeas court that counsel’s conduct in that respect was
not deficient.
With regard to the failure to consult13 or present an
expert, the habeas court concluded that the petitioner
had failed to show prejudice. To prevail on his claim,
the petitioner would have had to prove that the inter-
views were so improperly conducted that had trial coun-
sel consulted an expert and presented expert testimony
as to the alleged improprieties, the jury would have
concluded that the victims’ memories had been tainted
to the extent that their later in-court testimony was
unreliable, thereby causing the jury to have reasonable
doubt respecting guilt.14
We agree with the habeas court that the petitioner
failed to prove prejudice. Although the petitioner pro-
vides a number of examples of instances during the
interviews in which he claims that the interviewer acted
improperly, the petitioner failed to show a reasonable
probability that expert testimony concerning such
improprieties would have altered the result of his trial.15
The habeas court had before it the testimony of both
interviewers, testimony of the petitioner’s expert as to
her concerns with the interviews, and the videotapes
of the forensic interviews. Utilizing the testimony of
the witnesses, the court ultimately made the factual
finding that the approach of using ‘‘generally open
ended [questions] to avoid leading the child’’ was
employed. This finding has support in the record, in
that Cosgrove’s testimony indicated that he was aware
of protocols for conducting forensic interviews, had
attended seminars that included information on this
topic, had consulted experts in the past, was aware that
forensic interviews could be done incorrectly, did not
see that in this case, and thus believed he did not need
an expert. See Antonio A. v. Commissioner of Correc-
tion, 148 Conn. App. 825, 835, 87 A.3d 600 (noting, in
determining whether trial counsel was ineffective for
failing to present testimony of forensic psychologist,
that ‘‘he had considerable training in the area of sexual
assault, having attended many seminars and training
sessions, and having read books and numerous journal
articles’’), cert. denied, 312 Conn. 901, 91 A.3d 907(2014). In the present case, the habeas court did not
make any findings that the interviews had been con-
ducted improperly, nor did it credit the petitioner’s
expert. Thus, we cannot conclude that there is a reason-
able probability that had trial counsel consulted with
an expert and introduced expert testimony, the jury
would have had a reasonable doubt respecting guilt.
See Minor v. Commissioner of Correction, supra, 150
Conn. App. 766 (agreeing with trial court in its conclu-
sion that ‘‘the omitted testimony of the three experts
would not have changed the jury’s assessment of the
victim’s credibility sufficiently to establish prejudice’’).
We turn to the petitioner’s remaining argument,
which is that trial counsel’s failure to consult an expert
caused the petitioner’s inability to counteract the state’s
expert.16 We first note that the state’s expert testified
only that it is typical behavior for child sexual abuse
victims to delay disclosure of such abuse. The petitioner
argues that had his trial counsel presented an expert,
it ‘‘would have leveled the playing field’’ because ‘‘once
[the state’s] expert explained that S and J were not
less credible for having delayed disclosure for several
years,’’ the petitioner’s expert could ‘‘explain that the
girls were not more credible for the certainty of their
testimony, since their memories might have been dis-
torted by biased or suggestive interviewing techniques.’’
(Emphasis omitted.) The respondent replies that trial
counsel did undermine the state’s expert on delayed
disclosure by arguing that the victims had unrestricted
access to a number of adults in whom they could have
confided about the abuse. Cosgrove testified that he
challenged the victims’ veracity by highlighting the num-
ber of adults in whom they could have confided. In
addition, he also advanced other arguments, including
that the victims may have fabricated the abuse after
being placed in a foster home because the petitioner
was preventing them from being adopted and that S
resented the petitioner for his strict parenting. ‘‘It is
well established that [a] reviewing court must view
counsel’s conduct with a strong presumption that it
falls within the wide range of reasonable professional
assistance and that a tactic that appears ineffective in
hindsight may have been sound trial strategy at the
time.’’ (Internal quotation marks omitted.) Boyd v. Com-
missioner of Correction, 130 Conn. App. 291, 298, 21
A.3d 969, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011).
We conclude that the habeas court properly deter-
mined that the petitioner failed to establish that he was
prejudiced by his trial counsel’s failure to consult with
or present an expert.
The judgment is reversed only as to the petitioner’s
claim of ineffective assistance of his trial counsel in
connection with the failure to assert an affirmative
defense of the statute of limitations and the case is
remanded to the habeas court for further proceedings
on that claim in accordance with this opinion. The judg-
ment is affirmed in all other respects.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to use the petitioner’s full name or to identify the victims or others through
whom the victims’ identities may be ascertained. See General Statutes
§ 54-86e.
1
At the time of trial, which occurred in 2008, S was twenty-one years old
and J was sixteen years old.
2
The petitioner would touch S’s breast and vaginal area, and rub his penis
on her until he ‘‘urinated.’’ The petitioner would also instruct S to put her
mouth on his penis, which she would do until he ‘‘urinated’’ in her mouth.
3
The petitioner would touch J’s breasts and vaginal area.
4
The petitioner’s mother had moved to Florida.
5
The petitioner filed a motion for articulation on January 21, 2014, which
was denied. The petitioner filed a motion for review of the denial of his
motion to articulate. This court granted the motion for review, but denied
the relief requested therein.
6
General Statutes § 54-193a provides in relevant part: ‘‘Notwithstanding
the provisions of section 54-193, no person may be prosecuted for any
offense, except a class A felony, involving sexual abuse, sexual exploitation
or sexual assault of a minor except within . . . five years from the date
the victim notifies any police officer or state’s attorney acting in such police
officer’s or state’s attorney’s official capacity of the commission of the
offense . . . .’’
We note that although § 54-193a has been amended since the date of the
crimes, the amendments to that statute are not relevant to the claims on
appeal. Accordingly, we refer to the current revision.
7
General Statutes § 54-193 (b), which is within the section entitled ‘‘Limita-
tion of prosecution for certain violations or offenses,’’ provides: ‘‘No person
may be prosecuted for any offense, other than an offense set forth in subsec-
tion (a) of this section, for which the punishment is or may be imprisonment
in excess of one year, except within five years next after the offense has
been committed.’’
We note that although § 54-193 (b) has been amended since the date of
the crimes, the amendments to that statute are not relevant to the claims
on appeal. Accordingly, we refer to the current revision.
8
The statute of limitations applicable in Crawford was § 54-193 (b).
Although the applicable statute of limitations in the present case is § 54-
193a, this court previously has also considered Crawford’s ‘‘unreasonable
delay’’ test when considering statute of limitations claims under § 54-193a.
See State v. Derks, 155 Conn. App. 87, 93–95, A.3d , cert. denied,
315 Conn. 930, A.3d (2015); Gonzalez v. Commissioner of Correction,
supra, 122 Conn. App. 280–86.
9
The court in State v. Ali, supra, 233 Conn. 411 n.6, distinguished the
statute of limitations affirmative defense at issue in that case from an unpur-
sued due process claim, ‘‘which [would have] required that he show both
that actual prejudice resulted from the delay and that the reasons for the
delay were wholly unjustified.’’ See also State v. Woodtke, 130 Conn. App.
734, 740–41, 25 A.3d 699 (2011) (‘‘A prejudice requirement . . . is only
necessary for a due process claim, not a statute of limitations claim. Connect-
icut courts consistently have considered only two events when ruling on
whether a defendant may successfully raise the statute of limitations as an
affirmative defense: [1] the issuance of the warrant by a judicial authority;
and [2] the execution or service of the warrant on the accused.’’ [Internal
quotation marks omitted.]).
10
‘‘Statutes of limitation are generally considered an affirmative defense
which must be proved by the defendant by a preponderance of the evidence.
. . . An affirmative defense is presented in the orderly course of a criminal
trial after the prosecution has presented its case-in-chief. . . . Practice
Book § 41-8 (3) provides, however, that a defendant may also raise the
statute of limitations defense in a pretrial motion to dismiss.’’ (Citation
omitted; emphasis added; footnote omitted; internal quotation marks omit-
ted.) State v. Ward, 306 Conn. 698, 706–707, 52 A.3d 591 (2012).
11
In his brief to this court, the respondent asserts an alternative ground
for affirming the judgment of the habeas court. The respondent argues that
counsel was not ineffective for failing to challenge the eighteen month delay
in serving the warrant ‘‘[b]ecause [the] petitioner’s decision to flee the state
tolled the statute of limitations . . . .’’ In support of this contention, the
respondent relies on State v. Ward, supra, 306 Conn. 698, interpreting General
Statutes (Rev. to 1987) § 54-193 (c), which is now § 54-193 (d), and provides:
‘‘If the person against whom an indictment, information or complaint for
any of said offenses is brought has fled from and resided out of this state
during the period so limited, it may be brought against such person at any
time within such period, during which such person resides in this state,
after the commission of the offense.’’
We note that although § 54-193 (d) has been amended since the date of
the crimes, the amendments to that statute are not relevant to the claims
on appeal. Accordingly, we refer to the current revision.
The respondent did not present this argument to the habeas court. In the
petitioner’s reply brief, he argues that the record is inadequate for review
of this claim. Because we agree with the petitioner that the record is inade-
quate to review this claim, we decline to consider the respondent’s proposed
alternative ground for affirmance. See New Haven v. Bonner, 272 Conn. 489,
497 n.7, 863 A.2d 680 (2005) (‘‘Although the defendant proposed additional
alternate grounds for affirmance, the record does not show that she raised
any of these claims in the trial court, and the defendant does not claim that
she did. Therefore, in the absence of a sufficient record, we decline to address
them.’’). We note, without commenting on its merits, that the respondent
is not precluded from raising this argument in the habeas court at the
new hearing.
12
The Supreme Court has granted certification to appeal in Michael T.
on the following issue: ‘‘Did the Appellate Court properly determine that
defense counsel provided ineffective assistance by failing to call an expert
to testify to the suggestibility of young children and the reliability of a child’s
recollection one year after the alleged event?’’ Michael T. v. Commissioner
of Correction, 310 Conn. 938, 79 A.3d 891 (2013).
13
In Stephen S. v. Commissioner of Correction, 134 Conn. App. 801, 806,
817, 40 A.3d 796, cert. denied, 304 Conn. 932, 43 A.3d 660 (2012), this court
concluded that trial counsel’s conduct was not deficient in failing to consult
with an expert in the field of child sexual abuse because he had ‘‘affirmatively
consulted with an expert in a relevant field,’’ a psychiatrist who reviewed
the victim’s records. The court distinguished the situation from those cases
in which trial counsel failed to consult any relevant expert prior to trial.
Id., 815. ‘‘Because we conclude that the petitioner has failed to satisfy the
prejudice prong, we need not determine whether the alleged failure of
his counsel [to consult an expert] constituted deficient representation.’’
Peruccio v. Commissioner of Correction, supra, 107 Conn. App. 73 n.1.
14
We note, as this court did in considering a claim that counsel was
ineffective for failing to present testimony of a forensic psychologist, that
‘‘any such expert would have been subject to cross-examination by the
prosecution.’’ Antonio A. v. Commissioner of Correction, 148 Conn. App.
825, 836, 87 A.3d 600, cert. denied, 312 Conn. 901, 91 A.3d 907 (2014). At
the habeas trial, the petitioner’s expert did concede on cross-examination
that S provided many details in her interview without being prompted. The
expert also agreed that J had, on at least two occasions, corrected the
interviewer with regard to specific facts.
15
We also conclude that the petitioner failed to prove his trial counsel’s
conduct was deficient in failing to use an expert witness to point out weak-
nesses in the victims’ testimony. He provides examples of testimony at trial
that could have been called into question using statements made in the
forensic interviews. We first note that ‘‘[a]n attorney’s line of questioning
on examination of a witness clearly is tactical in nature. [As such, this]
court will not, in hindsight, second-guess counsel’s trial strategy.’’ (Internal
quotation marks omitted.) Antonio A. v. Commissioner of Correction, supra,
148 Conn. App. 832. Moreover, use of an expert to point out inconsistencies
between the victims’ trial testimony and statements made in the forensic
interview could have had the undesired effect of the videotapes being shown
to the jury. See id., 831 (holding trial counsel was not deficient in questioning
of witnesses, considering ‘‘trial counsel[s] expla[nation] that during cross-
examination of the victim at the petitioner’s criminal trial, he did not want
to engage her regarding the specifics of the sexual assault because he
believed it would not have been looked upon favorably by the jury, and he
did not want to open the door to the videotape of the forensic interview
being shown to the jury because it showed an eight year old girl explaining
that her father had abused her sexually’’). The habeas court appropriately
concluded that ‘‘[h]ad Attorney Cosgrove challenged the forensic interviews
of the victims, as the petitioner suggests, he would have risked their introduc-
tion into evidence, the result of which would have been very damaging to
the petitioner’s case.’’
16
Additionally, the petitioner makes three related claims concerning the
postinterview reports. He first claims that the postinterview reports were
not prepared in accordance with General Statutes § 17a-106 (a) because
they were completed only by the interviewers rather than by an investigatory
team. Second, he claims that the ‘‘interviewers’ unsupported inferences of
reliability and veracity’’ were ‘‘repeated almost verbatim in the affidavit
supporting the arrest warrant,’’ and ‘‘provided the foundation for the arrest
warrant application.’’ He third argues that an expert would have brought
to trial counsel’s attention that forensic interviewers are not able to distin-
guish true from false reports of sexual abuse. The petitioner offers no
explanation, however, as to how any of these alleged improprieties caused
him prejudice. ‘‘The petitioner bears the burden of establishing prejudice
in his claim of ineffective assistance of counsel.’’ Hamlin v. Commissioner
of Correction, 113 Conn. App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn.
917, 970 A.2d 728 (2009). Accordingly, these claims fail.